Guideline on Requesting Approval to Undertake Certain Railway Works

December 15th, 2006

Table of Contents:

1. I. Background
2. II. Purpose
3. III. Scope
4. IV. Authority
5. V. Definitions
6. VI. Assumptions
7. VII. Required and Recommended Information
   • Information required by statute
   • Information recommended as a matter of policy
8. VIII. Consideration of the Request
9. IX. Administrative Suggestions
10. X. Contact

Appendix

1. Appendix I: Engineering standards made under subsection 7(2), 7(2.1)
2. Appendix II: Environmental Assessment
3. Appendix III: Rail Safety - Contact Information
4. Appendix IV: Summary of relevant Rail Safety Act Provisions

I. Background:

Under subsection 10(1) of the Railway Safety Act¹ (RSA), where a proponent wishes to undertake a proposed railway work that:

1. departs from any applicable engineering standard in effect under section 7 of the RSA²; or,
2. is one of the types specified in the Notice of Railway Works Regulations³ and to which there is an outstanding objection, filed under subsection 8(2) of the RSA, from a person who considers that it would prejudice their safety or the safety of their property,

the proponent must first request the approval of the Minister of Transport (the Minister) and, if approval is received, must subsequently undertake the work in accordance with the terms of that approval.

When a proponent files such a request with the Minister for the Minister's consideration and possible approval, the proponent should provide all of the information and documentation necessary to substantiate its request and enable the Minister to determine whether the proposed railway work is consistent with safe railway operations.

II. Purpose:

The purpose of this guideline is to clarify:

• the process to be followed when a proponent files a request with the Minister to undertake a railway work, as set out in subsection 10(1), for which Ministerial approval is required before beginning the undertaking; and,
• what information and documentation a proponent should provide to substantiate their proposal and help the Minister to determine whether the proposal is consistent with safe railway operations.

III. Scope:

This guideline is intended for all proponents wishing to undertake a railway work with respect to a line of railway within the legislative authority of Parliament for which approval by the Minister is required under subsection 10(1) of the RSA.

IV. Authority:

This guideline is issued under the authority of the Director General, Rail Safety.

V. Definitions:

For the purposes of this guideline, the following definitions will apply:

"Crossing work" means a road crossing or a utility crossing.

"Engineering standards" means engineering standards in place pursuant to section 7 of the RSA.

"Minister" means the Minister of Transport, and includes persons authorized in writing under section 45 of the RSA to act on the Minister's behalf, as specified in the instrument of authorization.

"Line work" means:

1. a line of railway, including any structure supporting or protecting that line of railway or providing for drainage thereof;
2. a system of switches, signals or other like devices that facilitates railway operations; or
3. any other structure built across, beside, under or over a line of railway, that facilitates railway operations, but does not include a crossing work.

"Person" includes a government of a municipality and a road authority.

"Prescribed" means prescribed by regulations. The regulations specifically referenced in this guideline are the Notice of Railway Works Regulations.

"Proponent" means the person who proposes, or has proposed, the construction or alteration of the railway work, whether voluntarily or because of a requirement imposed by or under another piece of legislation.

"Railway company" or "railway" means a railway company operating in Canada under the legislative authority of Parliament, and subject to the provisions of the RSA.

"Railway work" means a line work or any part thereof, a crossing work or any part thereof, or any combination of the foregoing.

"Road" means any way or course, whether public or not, available for vehicular or pedestrian use.

"Road crossing" means that part of a road that passes across, over or under a line of railway, and includes any structure supporting or protecting that part of that road or facilitating the crossing.

"RSA" means Railway Safety Act, R.S.C. 1985, c.32 (4^th Supp.).

"Utility crossing" means that part of a utility line that passes over or under a line of railway, and includes any structure supporting or protecting that part of that utility line or facilitating the crossing.

"Utility line" means any wire, cable, pipeline or other like means of enabling the transmission of goods or energy or the provision of services.

VI. Assumptions:

This guideline has been developed based on the following assumptions:

1. The guideline is in no way intended to subordinate the RSA or any other Act, or regulations, standards, orders, directives, or rules made under the RSA or any other Act.
2. Conformity with the requirements identified in this guideline does not of itself guarantee Ministerial approval of the proposed railway work.
3. All parties to a request for approval of a proposed railway work will respect the timeframes specified in legislation.
4. A proponent making a request for Ministerial approval of a proposed railway work under subsection 10(1) of the RSA will provide all information and documentation necessary to substantiate the request at the time it is submitted to the Minister for consideration – such as the "required and recommended information" listed below. The time limit begins when the Minister has received all of the information and documentation required by the RSA.⁴
5. Views expressed by TC representatives during discussions with a proponent on a proposed railway work do not necessarily reflect those of the Minister. Such discussions in no way bind the Minister or fetter the powers of the Minister or any authorized delegate under the RSA.

VII. Required and Recommended Information:

When a proponent files a request to undertake a proposed railway work in accordance with subsection 10(1), there is particular information and documentation that the proponent is required to provide by the RSA, as well as additional information and documentation that Transport Canada recommends that it provide, to substantiate its proposal and facilitate the Minister's assessment of it.

Required Information:

With respect to required information, a proponent must provide the Minister with the following information and documentation:

• Where paragraph 10(1)(a) applies:
  • a copy of the request itself, including reference to the particular provision of the RSA under which the request is being made;
  • a copy of the plan of work for the proposed undertaking, including drawings, specifications and other particulars as are prescribed; and,
  • a statement setting out the manner in which the work departs from the applicable engineering standards and the reasons for such departure; or
• Where paragraph 10(1)(b) applies:
  • a copy of the request itself, including reference to the particular provision of the RSA under which the request is being made;
  • a copy of the plan of work for the proposed undertaking, including drawings, specifications and other particulars as are prescribed; and,
  • a copy of the proponent's response to the outstanding objections.
• In both cases:
  • As applicable, confirmation that a professional engineer is taking responsibility for any part of the engineering work related to an exemption for a railway work.⁵

Recommended Infomation:

With respect to recommended information, to facilitate the Minister's assessment of whether a proposed railway work would be consistent with safe railway operations, it is strongly recommended that the proponent also provide the Minister, at the time of filing, with the following information and documentation:

Notice:

• in the case of a request under paragraph 10(1)(b), a copy of the notice given by the proponent in accordance with subsection 8(1) and a list of persons to whom it was sent.⁶

Environmental Assessment:

• a Project Description, as defined in the "Federal Coordination Regulations" made pursuant to the CEAA;⁷ If it is determined that an Environmental Assessment (EA) is required under the CEAA the proponent will be expected to conduct an EA in accordance with directions and submit an EA report for TC's review and independent EA determination (i.e., regarding whether the project is likely to have significant adverse effects). For more information on CEAA, see Appendix I.
• If it is determined that an EA is not required, a description of how the potential environmental implications of the proposed project would be addressed.

Risk Assessment:

• A description of safety issues and concerns, an evaluation of those issues and concerns by means of a risk assessment and an indication of measures for risk mitigation and control.
• An analysis of the implications for other interested parties (e.g. where co-production, or shared running rights exist).

VIII. Consideration of the Request:

When a request for approval of a proposed railway work is filed with the Minister under subsection 10(1) of the RSA, the Minister considers whether, having regard to the information provided by the proponent in accordance with the requirements of the RSA and any other factors that the Minister deems relevant, the proposed railway work is consistent with safe railway operations.

In making this determination, the Minister may take into consideration the required and recommended information outlined above and any other factor the Minister considers relevant, such as whether:

1. requirements of the RSA have been met by the proponent, including whether the compulsory supporting documentation accompanied the request;
2. the requirements of section 11 of the RSA have been met regarding engineering work related to railway works;⁸
3. in the case of a request made under paragraph 10(1)(b) of the RSA, proper notice of the proposed work was given;⁹
4. in the case of a request made under paragraph 10(1)(b) of the RSA, objections filed under subsection 8(2) have been addressed adequately by the proponent – i.e., the proponent's response to the outstanding objection(s), includes a description of safety issues and concerns, an evaluation by means of a risk assessment and an indication of measures for risk mitigation and control;
5. in the case of a request made under paragraph 10(1)(a), the proponent has ensured that the safety implications of, and/or risks associated with the exemption have been identified and assessed, and whether risk mitigation strategies would be adequate;
6. the proponent has addressed the concerns raised, if any, by interested parties whose safety could reasonably be expected to be affected by it (i.e., in addition to those to whom it is required to give notice under subsection 8(1) of the RSA), such as via a letter responding to their concerns; and,
7. any safety issues or questions remain outstanding, and whether follow-up action is required.

Under the RSA, the Minister has an assessment period of 60 days to consider the request and notify the proponent and any objecting party of the Minister's decision.¹⁰ This assessment period begins on the day a complete request (i.e., one that includes all of the mandatory accompanying documentation) is received by the Minister.

TC Rail Safety may contact the proponent to discuss its proposal after it has been filed (e.g., to request further information or clarification with respect to the proposal or its supporting documentation). If TC Rail Safety determines that it requires further information to evaluate such a proposal, it seeks to request that information in a timely manner. A proponent may likewise contact TC Rail Safety officials to discuss its proposal after filing it. However, if a proponent chooses to contact TC regarding its proposal, it is advised to seek to complete such discussions at least ten (10) working days before the end of the assessment period; after which time, additional information might not be accepted.

If, before the end of the 60-day assessment period, the Minister determines that, by reason of the complexity of the work, the number of requests filed or any other reason (e.g., to provide a railway company additional time to provide further information requested by TC Rail Safety), it will not be feasible to consider the proposal before the expiration of that period, the Minister may, by notice, extend the assessment period to any time in excess of 60 days that is specified in the notice.

The Minister's decision will be conveyed to the proponent and each party that objected to the proposed work, in the form of a notice.

If the Minister is satisfied that the proposed railway work is consistent with safe railway operations, and therefore decides to approve it, the notice may specify terms on which the work is being approved. Terms so specified are binding on the proponent in undertaking the work. Before recommending that the Minister approve a proposed railway work on certain terms, TC Rail Safety may, when practicable and appropriate, endeavor to contact the railway company to inform it of those possible terms and conditions.

An approval of a proposed work is in force for limited period of time. Such an approval, does not authorize the commencement of that work after the expiration of either: the period specified in the notice of approval; or, if no period was specified in the notice, one year after the approval was given.

If the Minister is not satisfied that the proposed railway work is consistent with safe railway operations, the Minister may decide to:

• refuse the proposal, in which case the notice will include the reasons why the Minister is not so satisfied; or
• direct the proponent to file with the Minister and any objecting party, within the period specified in the notice, such further particulars relating to the work as are specified in the notice.

If the proponent fails to file required further particulars within the period set out in the notice, it shall be deemed to have withdrawn its request for approval of the work. Alternatively, if the proponent does file the further particulars within the period specified in the notice, the request for approval is considered to have been filed with the Minister only at the time when the further particulars were filed, thereby starting a new 60-day assessment period.

IX. Administrative Suggestions:

The following suggestions are offered as a means of facilitating the administrative processes associated with a request for Ministerial approval of a proposed railway work under subsection 10(1) of the RSA:

1. Before formal submission of their request, and at their earliest convenience, the proponent should contact Transport Canada - Rail Safety to initiate dialogue on the proposal.¹¹ The first point of contact would most appropriately be the Rail Safety office for the Transport Canada region in which the proposed railway work is to be undertaken.
2. Proponents should provide TC with a detailed project description, as early in the planning phase as possible, to facilitate the commencement of the processes required under the CEAA, and the Federal Coordination Regulations.¹²
3. In addition to the Notice sent out under subsection 8(1), the proponent should communicate with other interested parties whose safety could reasonably be expected to be affected by the proposed work (e.g., employees, railways with running rights on the trackage to be affected by the work, etc).
4. Requests should be addressed to the Minister with copies to the Director General, Rail Safety, Ottawa, and to the Regional Director - Surface for the Transport Canada region where the proposed railway work is to be undertaken (the list of Rail Safety offices is found in Appendix III).
5. The filing should make clear that individuals, such as employees of the proponent or third parties, acting on behalf of a proponent (e.g., to file the proposal, issue required consultations, etc), have the appropriate corporate or legal authority, as applicable, to do so (e.g., by providing a power of attorney document with the information they submit, as appropriate).
6. In the case of a request under paragraph 10(1)(b), copies of all pertinent correspondence between the proponent and persons to whom notice of the proposed work has been given, should be included with the proponent's application to the Minister.
7. When filing its request, the proponent should identify an official who TC Rail Safety employees may contact to discuss the proposed work – in particular its technical aspects. Likewise, upon receipt of a proposed rule, TC seeks to identify a railway safety official who railway companies may contact to discuss the proposal – in particular its technical aspects.

X. Contact:

Questions, comments or suggestions on improving this guideline should be directed to the office of:

Susan Archer
Director, Safety Policy & Regulatory Affairs
Transport Canada, Rail Safety
Enterprise Building, Minto Place
14th Floor, Suite 1410
427 Laurier Avenue West
Ottawa, Ontario
K1A 0N5
Telephone: 613-990-8690
Fax: 613-990-7767
Email: Susan.Archer@tc.gc.ca

Appendix I: Engineering standards made under subsection 7(2), 7(2.1)

The following are engineering standards made under subsection 7(2) or subsection 7(2.1) of the RSA and approved under paragraph 19(4)(a) of the RSA:

• TC E-05 - Standard Respecting Railway Clearance - Approved on May 14, 1992.
• TC E-07.01 - Railway Signal and Traffic Control Systems Standards - Approved on August 28, 1995 and revised on August 26, 1998.
• TC E-10 - Standards Respecting Pipeline Crossings under Railways - Approved on June 21, 2000.
• TC E-14 - Transport Canada Standard for LED Signal Modules at Highway/Railway Grade Crossings - Approved on October 10, 2003.

The following are regulations issued before the coming into force of the RSA in 1989, some of which contain provisions concerning engineering standards:

• Ammonium Nitrate Storage Facilities Regulations (General Order O-36) (C.R.C., c. 1145).
• Anhydrous Ammonia Bulk Storage Regulations (General Order O-33) (C.R.C., c. 1146).
• Chlorine Tank Car Unloading Facilities Regulations (General Order O-35) (C.R.C., c. 1147).
• Flammable Liquids Bulk Storage Regulations (General Order O-32) (C.R.C., c. 1148).
• Height of Wires of Telegraph and Telephone Lines Regulations (General Order E-18) (C.R.C., c. 1182).
• Highway Crossings Protective Devices Regulations (General Order E-6)) (C.R.C., c. 1183).
• Joint Use of Poles Regulations (General Order E-12) (C.R.C., c. 1185).
• Liquefied Petroleum Gases Bulk Storage Regulations (General Order O-31) (C.R.C., c. 1152).
• Railway-Highway Crossing at Grade Regulations (General Order E-4) (SOR/80-748).
• Wire Crossings and Proximities Regulations (General Order E-11) (C.R.C., c. 1195).

Appendix II: Environmental Assessment

Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act (CEAA) requires federal decision makers (i.e., "responsible authorities") to consider the environmental effects of certain proposed projects before taking any actions that would allow such projects to go ahead. Transport Canada (TC) must ensure that an environmental assessment (EA) is conducted in accordance with the requirements of the CEAA for all projects:

1. for which it has a trigger under CEAA subsection 5(1); and
2. that are not described in the Exclusion List Regulations¹³ (i.e., regulations prescribing those projects and classes of projects for which an EA is not required).

A project is either:

1. an undertaking in relation to a physical work; or
2. an undertaking not related to a physical work that is described in the Inclusion List Regulations¹⁴ (i.e., regulations prescribing physical activities and classes of physical activities not relating to physical works that may require an EA).

Four types of EA are possible under CEAA: screenings; comprehensive studies; panel reviews; and, mediations. In practice, all EAs are conducted as screenings unless: otherwise required by Comprehensive Study List Regulations¹⁵; or, the Minister of Environment decides to proceed with a panel review or mediation. As a result, the vast majority of federal EAs are conducted as screenings.

For more information on CEAA please refer to the Canadian Environmental Assessment Agency's Primer For Industry guide located on the Agency's Website.

Subsection 10(1) Railway Safety Act – CEAA Trigger

Pursuant to paragraph 5(1)(d) of the CEAA, a request for Ministerial approval of a proposed railway work under subsection 10(1) of the Railway Safety Act (RSA) is a trigger for an EA. Therefore, pursuant to subsection 11(2) of the CEAA, TC is not permitted to grant an approval under subsection 10(1) of the RSA unless it first takes a course of action pursuant to paragraph 20(1)(a) of the CEAA for Screenings, or 37(1)(a) for Comprehensive Studies. Notwithstanding the above, a proposed project would not require an EA to be completed under CEAA if it is described in the Exclusion List Regulations.

Environmental Assessment - Screening Process

The following outlines the general process for screening level assessments of proposed railway works in accordance with CEAA.

1. The proponent submits a Project Description for its proposal to Transport Canada. It is recommended that the proponent file its Project Description as early as possible to facilitate the commencement of the EA process that is required under the CEAA.¹⁶

2. TC reviews the proponent's Project Description and determines whether it has a decision-making responsibility that triggers the need for an EA of the project. The majority of railway projects submitted for approval under subsection 10(1) of the RSA are expected to trigger the need for an EA screening to be conducted.

3. If TC determines that there is a requirement for an EA to be conducted, it will notify other federal authorities that are likely to exercise a power with respect to the project or that are in possession of specialist or expert information or knowledge that is necessary to conduct the EA of the project (e.g., Environment Canada, Health Canada).

4. TC determines the Terms of Reference (TOR) for the EA that is to be conducted, specifically: the scope of the project; the factors to be considered; and, the scope of those factors. The TOR are generally incorporated into a Scoping Document, which is prepared by TC and then forwarded to the project's proponent. This will be done in coordination with other Responsible Authorities (RAs) and expert federal departments, when determined necessary.

5. The proponent should use the Scoping Document as a guide for what TC expects to be covered in the EA report. Notwithstanding, TC may identify further factors or issues during the EA process, which the proponent will also be expected to assess.

6. The proponent conducts the EA and submits an EA report to TC for review and comments. TC will review it in coordination with the other RA(s) and expert federal departments when determined necessary.

7. Depending on the nature of the proposal, and the issues surrounding its implementation, TC may request the proponent to provide the public an opportunity to review and comment on the proponent's EA report.

8. The proponent will be expected to respond appropriately to comments received from TC, and other interested parties (the public). Further information requests may be issued to the proponent if TC determines that the EA report is not adequate or that certain issues require clarification. The proponent will be expected to respond appropriately.

9. TC will take the following into consideration when making its EA determination pursuant to paragraph 20(1)(a) of the CEAA: the EA report submitted by the proponent; comments filed by the public pursuant to subsection 18(3) of the CEAA; and, input received from other federal authorities in possession of specialist or expert information or knowledge. This will be done in coordination with the other RA(s) for the project, if any.

10. TC renders its decision under Section 20 of CEAA. If there are other RAs involved, they will be required to make their own independent Section 20 determinations.

Appendix III: Rail Safety - Contact Information

Regional Offices:

Atlantic

Regional Director
Heritage Place, 95 Foundry Street, Suite 418
Moncton NB E1C 5H7
Phone: 506-851-7040
Fax: 506-851-7042

Ontario

Regional Director
4900 Yonge Street, 3rd Floor
North York ON M2N 6A5
Phone: 416-973-9820
Fax: 416-973-9907

Québec

Regional Director
800 René-Lévesque West, 6th Floor, Suite 638
Montréal QC H3B 1X9
Phone: 514-283-5722
Fax: 514-283-8234

Prairie &Northern

Regional Director
344 Edmonton Street, 4th Floor, P.O. Box 8550
Winnipeg MB R3C 0P6
Phone: 204-983-4214
Fax: 204-983-8992

Pacific

Regional Director
225-625 Agnes Street
New Westminster BC V3M 5Y4
Phone: 604-666-0011
Fax: 604-666-7747

Headquarters:

Director, Safety Policy &Regulatory Affairs
Enterprise Building, Minto Place, 427 Laurier Avenue West, 14th Floor
Ottawa ON K1A 0N5
Phone: 613-990-8690
Fax: 613-990-7767

Appendix IV: Summary of Relevant RSA Provisions

Undertaking of Proposed Railway Works

RSA Reference	Subject:	Applies to who/what:	Regarding what:
10(1)	Railway works for which Ministerial approval required	- proponent	- requirement to get Ministerial approval before undertaking certain specified railway works
10(1.1)	Request for approval before end of notice period	- proponent	- circumstances under which requests may be filed with the Minister earlier than end of notice period
10(1.2)	Withdrawal of objection	- railway work	- Minister's approval no longer needed if outstanding objection withdrawn
10(2)	Material to accompany request for Minister approval	- proponent	-see subject
10(3)	Consideration of requests for approval	- Minister	- decision whether to approve proposed railway work, and if so, on what terms, if any; -directing a proponent to provide further particulars re: proposed work
10(4)	Late approval	- railway work	- approving a railway work undertaken without first receiving required approval
10(5)	Minister may seek advice	- Minister	- decision whether to approve proposed railway work
10(6)	Further particulars	- proponent / Minister	- filing further particulars in response to a direction under 10(3) - processing such filings
10(7)	Period for which approval in force	- Minister's approval	- when approval for proposed railway work expires
10(8)	Definition of "assessment period"	- assessment period	- period Minister has to consider and render a decision on a proposal
10(9)	Period of inquire not part of assessment period	- assessment period	- inquiries of proposal directed by Minister